More Than One (Tunnel) View

You’re in beautiful Yosemite National Park. On your way to the Mariposa Groves, you pull into a parking lot next to a tunnel. You look to your right and see the splendor of Yosemite Valley, including Bridal Veil Falls, Half Dome and El Capitan. Of course, you want to take a picture of it.

But wait. Look closely at your feet and you’ll see the 1000s of tripod leg indentations. It’s been done before, and done well by none other than Ansel Adams. So when you take a photo of the same “Tunnel View,” is that copyright infringement?

Copyright law protects original expressions, not ideas. So when Mr. Adams had the idea to photograph Tunnel View, he owned the copyright to the expression of that idea only. That is, his copyright covers the photograph, not the subject matter. So it’s ok to photograph Tunnel View, right? Well, there’s more.

It’s clear to most everyone that you can’t photocopy Mr. Adams’ photograph. But did you know that his copyright extends a bit more than just to the exact image? Copyright law also protects his expression of the subject as contained in his elements of composition, such as the selection of lighting, shading, camera angle, background and perspective.

The parking lot at Tunnel View is small, and gives few options to capture that scene. So if you take a shot of the same scene including some of the same elements of Mr. Adams’ composition, does that constitute infringement? It would only if you produced something “substantially similar” to his work. In other words, would the average lay observer recognize the alleged copy as having been taken from the copyrighted work?

So you lay a copy of Adam’s “Tunnel View” photograph next to your camera, and set everything you possible can to shoot precisely the same image as his. You announce that you are attempting make an exact copy of his photograph. Are you infringing his image yet? That depends. Again, would an ordinary person find that you were successful in copying his image to a meaningful degree? Probably not. At a minimum, the trees in the area are different; the weather changes by the moment; and Mr. Adams had a skill that is not easily replicated.

This test is made easier by copyright law. Objects in the public domain or as they occur in nature are not protected by copyright. So shoot away at all of the icons in nature — you’re not in danger on infringing on anyone’s copyrights. But when it comes to other objects, check these tests to ensure that you’re respecting the copyrights of others.

Take my advice; get professional help.

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It’s a Team Effort

After you hire an attorney, your work is not done. You can do a lot to help (or hurt) your case. Since you usually get one shot at winning a claim, here are 10 tips to make the most of your legal challenge:

#1 Be candid. Your attorney can help you more if she knows the WHOLE story, not just the good part or your side of things.

#2 Be truthful. Lies can easily be exposed. Your case will be much stronger when you are honest.

#3 Be responsive. If your lawyer asks you a question, answer it fully and directly. Follow directions from your lawyer.

#4 Be accessible. Your attorney may need to talk with you without delay, so be available and return calls promptly.

#5 Be discreet. Don’t discuss your case with anyone other than your lawyer or her staff. While some information may be disclosed, it can be difficult to know the difference. So it’s best not to talk about any of it.

#6 Be reasonable. While you may have the best case in the world, sometimes it’s better to cut your losses and get on with your life. The court system is designed to solve problems, whether it’s through settlement or litigation. It is not the place to enact vengeance.

#7 Be understanding. Your lawyer has other clients and maybe a personal life. Don’t expect her to drop everything to respond to your every whim.

#8 Be patient. The legal process takes much longer than the hour shown on T.V. Some cases can take years. So don’t expect immediate results.

#9 Be kind. Treat your lawyer, her staff, and the opposing counsel with respect and consideration. They may be more reasonable when dealing with you and your claim.

#10 Be realistic. The big verdict/windfall cases get a lot of publicity, but they are rare. Even with large awards, they must first be used to pay court costs, attorney’s fees, expert witness bills, deposition costs, etc.

Winning a case takes much more than just hiring a lawyer. It’s a team effort. Follow these and other sound practices to help your team win.

Take my advice; get professional help.

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Do It Yourself

It’s tax time. You’ve got to start going through those receipts to look for business deductions. You review the forms and read the circulars. But the tax code is complicated. Unless you also are a CPA, you have to consider your options for preparing your tax return.

You can do it yourself. You can fill out the tax forms the same as you did last year. The advantage is that there’s no initial outlay of costs. The disadvantage is the time it takes. A risk is that you’ll miss some tax breaks. The bigger risk is that you’ll report something incorrectly and be fined and/or penalized.

You can do it yourself with some help. You get Turbo Tax, or another tax software program. The program is helpful – it checks your math and prompts you for deductions. The cost is reasonable. But how personalized can a computer program get?

Or you cry uncle. You hire a CPA, discuss your tax situation with her, and organize your files to give her the best information. She prepares your tax return armed with knowledge and experience to give you the most from the tax code. Sure, the upfront cost is more. But so is the return.

It’s the same with a lawyer. You can do a lot of your legal work yourself. It will take more time, and you might get it wrong. But you’ve saved a few bucks upfront. The question then is, what will the costs be in the long run? Isn’t your photography important enough to get the best help? So maybe for this one, you shouldn’t do it yourself.

Take my advice; get professional help.

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Reproduction Rights

No, this isn’t an article about Roe v. Wade. It is about your rights as an author of art. When you own a copyright, you get to:

• To reproduce the copyrighted work;
• To display the copyrighted work publicly;
• To prepare derivative works based on the copyrighted work; and
• To distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

These rights may be assigned, sold, transferred or given away. But when you assign, sell, transfer or give away any of these rights, the only one that must be done in writing is when you transfer the copyright in total to someone else. You may do the rest verbally.

Imagine the surprise of Duke Prentup when he found that his $100 lithograph purchased from University of Colorado Professor Ward Churchill was a mirror image of the famous artist’s Thomas E. Mails’ pen and ink drawing, “The Mystic Warriors of the Plains.” While he likes Churchill’s lithograph, he is disappointed.

The two pieces are so identical, it’s clear that the copying was no accident. So the question becomes whether Mails, as the copyright author, gave Churchill permission to prepare a derivative work.

But we may never know. Mails is deceased. His son believes that his father would have not given such permission. Because such permission can be done verbally, there may not be a record to confirm it either way. Unfortunately, the son’s opinion won’t carry too much weight in court, either.

What should you do in response to this story? Always grant your rights in writing. Make a record of every single one. Make it such a standard policy of yours that after you’re gone, everyone will be able to testify that it was your habit to grant all of your rights in writing, even those that didn’t have to be. That type of testimony does carry weight in the courtroom. And that may be the only way to protect your work in the long run.

Take my advice. Get professional help.

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What Comes Around

Daniel Woolsey is being sentenced for felony today in California. He was caught selling pirated copies of Autodesk’s AutoCAD(R) software. Additional counts for selling other pirated software, including Adobe PhotoShop, were dropped as part of a plea bargain agreement. “This case should be a wake up call to copyright violators that they can face serious consequences. Autodesk will continue to work closely with law enforcement agencies . . . to protect our valuable intellectual property . . . .” said Sandy Boulton, director of Piracy Prevention at Autodesk.

Why should photographers care about this? Because we don’t want our intellectual property – copyrights/trademarks/trade secrets – stolen from us. When we share that music file with a friend or copy Photoshop from a colleague, we are perpetuating the problem, even if it is on a small scale. Is it ok to steal a pack of gum but not a car?

Here’s what you can do to keep people from stealing your images. First, don’t steal others’ work. Stop the cycle.

Second, like the software companies, make your work difficult to steal. Don’t put large files on the web. Put a watermark on them. Track them on the web with a program such as “Digimarc.” Include a delivery memo with your photos to document what you are sending. Specifically identify the limited rights you are granting to any user. Put your name and contact info with your images. Include your copyright notice on all of your work.

Third, just like the Autodesk company above, prosecute those who steal your work. Send the message that it’s not ok to steal the gum or the car.

Take my advice, get professional help.

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Have Your Cake and Eat It, Too

You can sell the copyright to an image. If so, you give up all rights that you had in the image as if you never took the photograph. But the only way to give up a copyright to an image is in writing.

Even when copies of a photo are distributed, the photographer retains the copyrights to the image. If you give your client copies of the digital files, without more, you are not giving up your copyrights.

You also can give specific, limited rights for the use of that copyright, while maintaining ownership of the copyright for the image. It’s called “licensing.” For example, you give a magazine the limited right to print one of your photos. You send a copy of the digital file or the negative/chrome, but you state that you are granting the magazine specific limited usage of the image, whether it is for printing 100,000 one-run copies, for a specific time-frame, or however you want to specify the license. In a portrait or event business, you can give copies of the images to your clients so that they can have prints made. Limit their rights to personal use, only, and you keep them from selling the images to the Enquirer.

It’s the closest thing to having your cake and eating it, too. Unless you state specifically in writing and sign the document that gives your copyright to an image to someone else, you keep the copyright, regardless of what else you do.

Take my advice. Get professional help.

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It’s come down to a ferret

In this digital age, it’s even easier for someone to steal your images. This is aggravated by a new generation that grew up copying music and other electronic files without a second thought.

To combat this, the Business Software Alliance is developing programs to promote copyright protection, cyber security, trade and e-commerce. BSA’s members include software industry giants such as Adobe and Microsoft.

BSA apparently recognizes that the best way to fight infringement is to raise people’s awareness at an early age. BSA has created a comic book called “Copyright Crusader to the Rescue.” It was developed to teach children about cyber ethics, including responsible computer and internet use, respect for digital creativity and copyright protection. The program’s mascot is a ferret, and kids selected its name, Garret.

While we wait for people to grow a conscience, you should do what you can to protect your copyrights. Register your images with the U.S. Copyright Office, and sue infringers. Check with an attorney to make sure that you exercise your rights to the fullest.

Take my advice. Get Professional Help.

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Get Professional Help

A quick review of web forums and talking with folks will reveal that a lot of photographers need professional help — professional legal help, that is. While the web is a wonderful tool, it has exacerbated the water-fountain rumor mill so that mis-information is rampant.

There is a reason why lawyers go to school for three full years, and then have to take over 10 hours of continuing legal education a year. The law is a difficult, ever-changing and voluminous subject. A real estate attorney can’t help you with a will, and a divorce lawyer can’t help you with your medical malpractice claim. It takes time and hard study to learn and to keep up with the law.

On top of that, each circumstance is different, so the law will affect your unique circumstance differently. You shouldn’t take the advice of your neighbor’s sister-in-law’s cousin who talked to his uncle about how to prosecute a copyright infringement case. Even when the circumstance on its face looks similar, a lawyer is trained to find those nuances that may make or break your case.

The adage “penny wise; pound short” applies here. Should a photographer risk his business with self help or the advice of some guy who read an article on trademark law?

Even the advice on this blog is purely educational and does not purport to constitute legal advice. But hopefully it will steer you to consult individually with a lawyer who can help photographers like you.

Take my advice. Get professional help.

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